United States v. Danny Henderson, Jr.
699 F. App'x 715
| 9th Cir. | 2017Background
- Henderson pled guilty to possession, distribution, and receipt of sexually explicit images of minors and was sentenced to 240 months.
- The presentence report (PSR) included a statement by Henderson’s mother (F.H.) that Henderson had molested a young child while in foster care decades earlier; the PSR also referenced a 2002 state conviction for lewd conduct with a child.
- Probation recommended a five-level pattern-of-activity Guidelines enhancement based on the foster-care allegation and the 2002 conviction.
- At sentencing the district court declined to apply the five-level enhancement, finding the foster-care allegation lacked extrinsic corroboration and thus was not proven by clear and convincing evidence.
- The district court nevertheless considered the foster-care incident as part of Henderson’s history and characteristics under 18 U.S.C. § 3553(a)(1), which permits consideration of facts by a preponderance standard.
- On appeal Henderson argued that consideration of his mother’s hearsay statements violated due process because they were unreliable and had demonstrably influenced his sentence; the Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (Henderson) | Defendant's Argument (Government/District Court) | Held |
|---|---|---|---|
| Whether consideration of mother’s hearsay at sentencing violated due process | Mother’s statements lacked minimal indicia of reliability (no extrinsic corroboration; event 30 years old) | Mother’s statements bore sufficient indicia of reliability and could be considered for § 3553(a) purposes | Court: Statements were sufficiently reliable for general sentencing use; affirmed |
| Whether the foster-care allegation required clear and convincing proof to be considered | Due process requires clear-and-convincing proof if allegation drove sentence | District court: enhancement with disproportionate effect needs clear-and-convincing proof; court declined enhancement due to lack of corroboration | Court: District court properly refused Guidelines enhancement for lack of corroboration; but could use allegation under preponderance for §3553(a) |
| Whether the hearsay demonstrably made the basis for the sentence | Henderson contended it did | Government argued sentencing court did not base sentence on uncorroborated allegation; court considered it among factors | Court: Did not decide whether the allegation demonstrably drove the sentence because reliability finding sufficed to affirm |
Key Cases Cited
- United States v. Dare, 425 F.3d 634 (9th Cir.) (§ 3553(a)(1) facts may be proved by preponderance)
- United States v. Vanderwerfhorst, 576 F.3d 929 (9th Cir.) (due process requires defendant show information is false/unreliable and demonstrably made basis for sentence)
- United States v. Petty, 982 F.2d 1365 (9th Cir.) (hearsay at sentencing must have minimal indicia of reliability)
- United States v. Egge, 223 F.3d 1128 (9th Cir.) (unreliable hearsay from interested declarants can be excluded from sentencing consideration)
- United States v. Ponce, 51 F.3d 820 (9th Cir.) (statements by co-defendants or accomplices are suspect at sentencing absent corroboration)
- United States v. Felix, 561 F.3d 1036 (9th Cir.) (factors with extremely disproportionate effect on sentence may require clear-and-convincing proof)